ACLU Commends Senator Feingold for Hearing on Secret Law

Washington, DC – The American Civil Liberties Union today applauded a Senate subcommittee for holding a hearing on the Bush administration’s use of secrecy to institute government policy. During the hearing, entitled "Secret Law and the Threat to Democratic and Accountable Government," the Senate Judiciary Subcommittee on the Constitution and its chairman, Senator Russell Feingold (D-WI), heard testimony from legal experts and open government advocates. The hearing focused on the administration’s broad interpretation of the law as it relates to government secrecy and counterterrorism policies – including a legal opinion written by former Justice Department Official John Yoo on the use of torture in interrogations. That memo was made public through a Freedom of Information Act (FOIA) request made by the ACLU.

"Government transparency is the cornerstone of democracy," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "This administration has been rewriting the Constitution memo by memo. From what we’ve seen of the self-serving opinions issued by the Office of Legal Counsel, we can only believe that those that remain secret must equally distort the law in favor of President Bush’s agenda. An agenda built on secrecy and overclassification is antithetical to our country’s ideals."

The ACLU noted that the Bush administration’s track record on government secrecy has been dismal at best. Memos from the Office of Legal Counsel (OLC) outlining legal opinions on torture and wiretapping remain classified despite several congressional calls for disclosure. The administration has also frequently issued executive orders only to amend those policies without publicly acknowledging the changes, removed public documents from the National Archives and created an unusual system of retroactive secrecy by reclassifying previously public information. One of the most public debates on executive power and secrecy has been rooted in the executive’s ability to conduct surveillance. Since the revelation of the president’s warrantless wiretapping program by the New York Times in December of 2005, that debate has been held publicly in Congress. However a missing piece of that debate is a still-secret OLC memo.

Last year, the ACLU filed a request with the Foreign Intelligence Surveillance Court for orders and legal papers discussing the scope of the government's authority to engage in the secret wiretapping of Americans. In December, a FISC judge ruled that the court would not conduct an independent review to determine whether or not the orders and legal papers were properly determined to be classified.

In recent years, the ACLU has engaged in a broad effort to uncover information about the Bush administration's torture and surveillance policies. In October 2003, the ACLU filed a FOIA request for records concerning the treatment of prisoners in U.S. custody abroad. To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA lawsuit enforcing the request – including the 2003 Yoo memo which stated that the president could authorize the torture of prisoners. Many critical documents, however, remain secret. Among the documents that still have not been released are an OLC memo listing interrogation methods for use by the CIA, and a Presidential Directive authorizing the CIA to set up secret detention facilities overseas.

"This administration’s view of executive power is hostile not only to the Constitution but to our entire system of checks and balances," continued Fredrickson. "The president is bound by the same laws that govern every American citizen and to claim otherwise is outrageous. If nothing else, warping the role of the executive will be this administration’s legacy. We applaud Senator Feingold for holding this hearing."